Oxnard School District (Gorcey and Tripp) (PERB 0667E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUDITH MAE 	GORCEY,
Charging 	Party,
v.
OXNARD 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-2389
PERB Decision No. 	667
May 26, 	1988
JAN MARIE 	TRIPP,
Charging 	Party,
v.
OXNARD 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-2390
Appearances; 	Rosenmund 	& 	Rosenmund by Michael 	A. 	Morrow 	for
Judith Mae Gorcey and Jan Marie Tripp; 	Breon, 	Galgani, 	Godino &
O'Donnell by 	David 	G. 	Miller 	for 	Oxnard 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	Judith Mae Gorcey and 	Jan Marie 	Tripp
(hereafter 	Charging Parties) 	appeal 	the 	dismissals 	of 	their
unfair 	labor 	practice 	charges 	filed 	against 	the 	Oxnard 	School
District 	(hereafter 	Respondent or District).1
1Oxnard 	School 	District 	(Gorcey) 	LA-CE-2389 	and 	Oxnard
Schoor~District 	(Tripp) 	LA-CE-2390 have been 	consolidated by
the 	Board 	for 	this 	decision.
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Charging 	Parties 	filed 	individual 	charges 	with 	the 	Public
Employment Relations 	Board 	(PERB or Board) 	on May 23, 	1986,
alleging 	that 	Respondent 	violated 	Education 	Code 	section
45028.2 Charging 	Parties 	further 	allege 	that 	Respondent
failed 	to bargain 	in 	good 	faith 	as 	required by 	Government 	Code
section 	3543.5(c)3 when 	it 	agreed 	to a 	salary 	schedule 	in
2Education 	Code 	section 45028 	states 	in pertinent part;
Effective 	July 1, 	1970, 	each person employed
by a 	district 	in a position 	requiring
certification 	qualifications 	except 	a person
employed 	in a position 	requiring
administrative 	or 	supervisory 	credentials,
shall 	be 	classified 	on 	the 	salary 	schedule 	on
the basis 	of 	uniform 	allowance 	for 	years 	of
training and years 	of 	experience. 	Employees
shall 	not be 	placed 	in different
classifications 	on 	the 	schedule, 	nor paid
different 	salaries, 	solely on 	the basis of
the 	respective grade 	levels 	in which 	such
employees 	serve.
3The 	Educational 	Employment 	Relations 	Act 	(EERA
or 	Act) 	is 	codified at Government 	Code 	section 3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references herein 	are 	to 	the 	Government 	Code.
Government 	Code 	section 	3543.5(c) 	provides 	as 	follows:
It 	shall be 	unlawful 	for a public 	school
employer 	to:
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2
• 	• 	• 	•
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violation of Government Code section 3543.2(d).4
Charging 	Parties 	are 	certificated 	employees 	of 	the 	Oxnard
School 	District 	and 	members 	of 	the 	Oxnard 	Educators 	Association
(hereafter Association or 	Union). 	Through 	the 	1983-84 school
year, 	the 	District 	used 	a 	12-step 	certificated 	salary 	schedule
which 	classified 	teachers 	on 	the basis 	of 	a 	uniform 	salary 	for
like 	years 	of 	training and years 	of 	experience 	consistent 	with
Education 	Code 	section 45028. 	Each 	step of 	the 	salary 	schedule
directly 	corresponded 	to 	the 	number 	of 	District-accepted 	years
of 	teaching 	experience.
During 	collective bargaining negotiations 	leading 	up 	to 	the
1984-85 	school 	year, 	the 	District 	and 	the Association
negotiated 	a 	10-step 	salary 	schedule 	which 	consolidated 	the
lowest 	three 	salary steps 	into a single 	step. 	Thus, 	teachers
with one, 	two and 	three years' 	experience were all placed on
step one 	and paid 	for 	three years' 	experience. 	Teachers 	with
four years' 	experience were placed on step two, 	those with 	five
years' 	experience on step three, 	etc.
4Government 	Code 	section 	3543.2 	states 	in pertinent 	part:
(d) 	Notwithstanding Section 45028 of 	the 	Education
Code, 	the public 	school 	employer 	and 	the 	exclusive
representative 	shall, 	upon 	the 	request 	of 	either party,
meet 	and 	negotiate 	regarding 	the 	payment 	of 	additional
compensation based 	upon 	criteria 	other 	than years 	of
training 	and years 	of 	experience. 	If 	the public 	school
employer 	and 	the 	exclusive 	representative 	do 	not 	reach
mutual 	agreement, 	then 	the 	provisions 	of 	Section 45028
of 	the 	Education 	Code 	shall 	apply.
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After 	ratification of 	the 	10-step 	salary schedule, 	unit
employees 	became 	aware 	that 	new 	teachers 	were being hired 	into
the 	District 	and placed 	at 	the 	salary 	step 	corresponding 	to
their 	years 	of 	experience 	as 	if 	the 	12-step 	salary 	schedule
were 	still 	in place. 	For example, 	new hires with 	three years
of 	experience 	were being 	placed 	on 	salary 	step 	three 	while
incumbent 	employees 	with 	three years 	of 	District 	experience
were 	at 	salary 	step 	one. 	The Association 	and 	District
negotiated 	a 	new 	salary 	schedule 	for 	1985-86 	providing 	for 	a
reinstatement 	of 	the 	12-step 	salary 	schedule 	and 	an
across-the-board 	pay 	increase 	of 	4.2 	percent.
The 	new 	salary 	schedule 	further 	provided 	that 	incumbent
teachers 	(i.e., 	those not newly hired 	in 1984-85) 	on steps 	one
through 	five 	and 	step 	ten were 	advanced 	three 	steps 	retroactive
to 	September 	1985, 	which 	translates 	into a 	12.6 percent pay
increase. 	Incumbent 	teachers 	on 	steps 	six 	through nine 	and 	all
newly hired 	teachers 	received 	a 	single 	step 	increase 	and 	a 	4.2
percent 	pay 	raise. 	Incumbent 	teachers 	on 	steps 	six 	through
nine 	were 	scheduled 	to be 	advanced 	two 	additional 	steps
effective 	the 	1986-87 	school year. 	The advancement, 	however,
was 	not 	retroactive.
Charging 	Party 	Judith 	Mae 	Gorcey was 	personally 	affected 	by
the 	salary schedules as 	follows: 	in 	1983-84 she was on step
nine with nine years' 	experience; 	in 1984-85 	she was on step
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eight with ten years' 	experience, 	and 	in 1985-86 she was on
step nine with 	eleven years' 	experience. 	Gorcey alleges 	she
lost 	$2,685.00 	in 	compensation because 	she 	received 	a 	one-step
rather 	than 	a 	three-step 	increase.
Charging 	Party 	Jan Marie 	Tripp was 	personally 	affected by
the 	salary schedules 	as 	follows: 	in 1983-84 	she was on step
six with 	six years' 	experience; 	in 1984-85 	she was on step 	five
with 	seven years' 	experience, 	and 	in 1985-86 	she was on step
six with eight years' 	experience. 	In 1985-86, 	other teachers
with 	less 	experience 	were 	currently 	on 	steps 	six 	and 	seven
receiving 	equal 	or 	greater pay 	than 	Tripp. 	Tripp alleges 	she
lost 	$2,132.00 	in 	compensation because 	she 	received 	a 	one-step
rather 	than 	a 	three-step 	increase.
Charging 	Parties 	allege 	that 	the 	1985-86 	salary 	schedule
violates 	Education 	Code 	section 	45028 by 	classifying 	teachers
for 	salary purposes 	on a basis 	other 	than years 	of 	training 	and
years 	of 	experience. 	The 	regional 	attorney determined 	that 	the
charge 	did 	not 	ask 	PERB 	to 	remedy a 	sole 	Education 	Code
violation; 	rather, 	it 	raised 	the 	issue of whether 	the 	District
committed 	the 	unfair 	labor 	practice 	of 	failing 	to bargain 	in
good 	faith 	(Section 	3543.5(c)) 	by 	negotiating 	a 	salary 	schedule
in violation of 	the 	Education Code. 	The 	regional 	attorney
concluded 	that 	PERB has 	jurisdiction 	to decide 	the 	instant
dispute, 	insofar 	as 	it relates 	to the 	alleged 3543.5(c)
violation of 	the 	Educational 	Employment 	Relations 	Act,
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but 	does 	not have 	jurisdiction 	to 	remedy 	allegations 	of
Education 	Code 	violations 	that 	are 	not 	concurrent 	violations 	of
the 	Educational 	Employment 	Relations 	Act.
The 	regional 	attorney dismissed 	the 	3543.5(c) 	allegation
based 	upon her 	conclusion 	that 	the 	salary 	schedule 	at 	issue 	did
not 	conflict 	with 	Education 	Code 	section 	45028 	since 	the
schedule 	was 	negotiated pursuant 	to 	Government 	Code 	section
3543.2(d), 	which permits parties 	to negotiate salary schedules
based 	on 	criteria 	other 	than years 	of 	training 	and years 	of
experience, 	notwithstanding Education Code 	section 45028.
The 	charges 	also 	allege 	that 	the 	District 	engaged 	in
conduct 	which 	"is 	expressly 	forbidden by 	Government 	Code
section 3543.2(d)." 	If 	true, 	such conduct could be evidence of
bad 	faith bargaining, 	an 	allegation 	over 	which 	this 	Board has
jurisdiction.
Charging Parties 	raise 	two 	issues 	on appeal: 	1) 	whether 	a
portion of 	the 	1985-86 	salary 	schedule 	agreed 	to by 	the
District 	and 	Respondent 	violates 	Education Code 	section 	45028;
2) 	and, 	if so, 	whether Government 	Code section 3543.2(d)
provides 	an 	exception 	to 	the 	uniformity 	requirement 	mandated by
that 	Education 	Code 	section.
In opposition 	to the appeal, 	Respondent 	argues 	that: 	1)
PERB 	lacks 	jurisdiction 	over 	the 	subject 	matter 	of 	the 	charge,
which 	specifically 	alleges 	a 	violation of 	the 	Education Code;
2) 	reference 	to 	the 	3543.2(d) 	allegation 	is 	time-barred by 	the
six 	month 	statute 	of 	limitations 	contained 	in 	section 	3541.5(a)
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because 	the 	original 	contract was 	agreed 	to 	in 1984, 	one 	and a
half years before 	the 	charges 	were 	filed; 	and 	3) 	the 	additional
considerations 	of 	standing 	and 	due 	process 	support 	the 	regional
attorney's 	dismissal.
DISCUSSION
This 	case 	raises 	two 	issues before 	the 	Board. 	First, 	does
the 	PERB have 	jurisdiction over 	the 	subject matter 	of 	this
case? 	Secondly, 	do 	Charging 	Parties 	have 	standing 	to 	assert
alleged 	violations 	of 	Education 	Code 	section 45028 	and
Government 	Code 	section 	3543.2(d)?
A. 	Jurisdiction
The 	regional 	attorney 	correctly 	found 	that 	PERB 	does 	not
have 	jurisdiction 	to 	enforce 	contracts between parties 	or 	to
enforce 	the 	Education Code. 	Government 	Code 	section 3541.5(b);
California 	School 	Employees Association 	v. 	Azusa 	Unified 	School
District 	(1984) 	152 Cal.App.3d 580; 	199 Cal.Rptr. 	635;
California 	School 	Employees Association 	v. 	Travis 	Unified
School District 	(1984) 	156 Cal.App.3d 	242, 	202 Cal.Rptr. 	699;
Los 	Angeles 	Unified 	School 	District 	(1986) 	PERB Decision No.
588. 	Where 	the 	sole 	violation alleged 	is 	of a mandatory
Education 	Code 	provision, 	jurisdiction 	lies 	in 	the 	trial 	court
and not with 	PERB. 	Wygant 	v. 	Victor Valley Joint 	Union High
School District 	(1985) 	168 Cal.App.3d 319; 	214 Cal.Rptr. 	205;
Marshall 	v. 	Russo 	87 	Daily Journal 	D.A.R. 	10094.
Here, 	Charging 	Parties 	allege 	that 	the 	District violated
Education 	Code 	section 45028 	and engaged 	in 	conduct 	which 	"is
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expressly 	forbidden by Government 	Code 	section 	3543.2(d)."
Accordingly, 	we 	find 	jurisdiction 	exists 	to determine whether
the 	charge 	states 	a possible unfair 	practice 	charge.
The 	regional 	attorney 	concluded 	that 	the 	negotiated 	salary
schedule 	did 	not 	violate 	the 	uniformity 	requirement 	set 	forth
in 	Education 	Code 	section 	45028 	that 	certificated 	employees 	be
classified on 	the 	salary 	schedule 	on 	the basis 	of 	uniform
allowance 	for years 	of 	training and 	years 	of 	experience because
the 	salary 	schedule 	was based 	on 	"other 	criteria" 	(specifically
"date 	of hire" 	and 	"what 	step an 	incumbent 	teacher was 	on 	in
1985-86"), 	pursuant to Government Code section 3543.2(d).
While 	it 	is not 	clear 	from the 	limited 	record what 	facts, 	if
any, 	were 	in dispute concerning this 	issue, 	to the extent
relevant 	facts 	were 	contested, 	the 	regional 	attorney's
determination was 	improper. 	Los 	Angeles 	Unified 	School
District 	(Wightman) 	(1984) 	PERB Decision No. 	473; 	San Francisco
Classroom Teachers 	Association CTA/NEA 	(Bramell) 	(1984) 	PERB
Decision No. 430.
Given our 	resolution of 	the standing 	issue, 	infra, 	it 	is
unnecessary to comment 	further 	as 	to whether 	the 	charge, 	by
alleging a violation of 	section 3543.2(d), 	states 	a prima 	facie
violation of section 3543.5(c).
B. 	Standing
Section 	3543.5(c) 	makes 	it 	unlawful 	for 	a public 	school
employer 	to 	"refuse 	or 	fail 	to meet 	and 	negotiate 	in 	good 	faith
8

with 	an 	exclusive 	representative." 	(Emphasis 	added.)
Moreover, 	section 	3543.3 	provides 	that 	an 	employer 	"shall 	meet
and 	negotiate 	with 	and 	only with 	representatives 	of 	employee
organizations 	selected 	as 	exclusive 	representatives 	of
appropriate 	units 	upon 	request 	with 	regard 	to matters 	within
the scope of 	representation." 	(Emphasis 	added.) 	Thus, 	the
employer's 	duty 	to 	negotiate 	in good 	faith 	is 	owed only 	to 	the
exclusive 	representative 	employee 	organization. 	A 	reciprocal
obligation on 	the part 	of 	an employee 	organization 	is 	contained
in section 3543.6(c); 	which makes 	it unlawful 	for 	an employee
organization 	to 	"[r]efuse 	or 	fail 	to meet 	and 	negotiate 	in 	good
faith 	with 	a 	public 	school 	employer. 	. . . " 	The 	clear 	purpose
of 	the 	Act 	is 	to protect 	the 	integrity and 	stability of 	the
bargaining 	process 	by bringing 	these 	two parties 	to 	the
bargaining 	table 	with 	the 	objective 	of 	creating 	a written
bilateral 	agreement.
In 	the 	instant matter, 	Charging Parties, 	as 	individuals,
are 	requesting 	this 	Board 	to negate 	a 	specific 	provision of 	the
agreement 	negotiated between 	the 	District 	and 	Union. 	We
conclude 	that 	where 	either 	an 	individual 	employee 	or
nonexclusive 	employee 	organization 	alleges 	that 	the 	employer
has 	failed 	to 	fulfill 	its 	statutory duty 	to bargain 	in 	good
faith, 	the collective bargaining process 	is, 	of necessity,
interfered 	with.
In 	so holding, 	we 	expressly overrule 	South 	San Francisco
Unified School 	District 	(1980) 	PERB Decision No. 	112, 	in which
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a majority of 	the 	Board, 	as 	then constituted, 	held 	that 	an
individual 	employee 	had 	standing 	to 	challenge 	a 	school
district's 	unilateral 	change 	in policy 	regarding his 	removal
from a coaching position. 	In 	South 	San Francisco, 	the Board
reached 	its 	conclusion by 	analogizing 	to 	the 	National 	Labor
Relations Board 	(NLRB) 	case of Alfred M. 	Lewis, 	Inc. 	(1977) 	229
NLRB 757 	[95 LRRM 1216], 	enf. 	in part 587 F.2d 403 	[99 LRRM
2841]. 	We 	first 	note 	that 	this 	Board 	is 	neither bound by NLRB
precedent 	nor 	obligated 	to apply 	its 	principles, 	especially
where 	statutory dissimilarities 	are 	apparent. 	Secondly, 	we
find 	that, 	although 	South 	San 	Francisco 	is 	somewhat 	factually
dissimilar,5 	the 	Board's 	reasoning was 	contrary 	to the
principle of 	exclusivity of 	representation, 	a precept which 	is
the 	cornerstone 	of 	EERA.6
Under 	the National Labor Relations Act 	(NLRA), 	the NLRB 	is
empowered 	to 	prevent 	" . . . 	any person 	from 	engaging 	in 	any
unfair 	labor practice. 	. 	."as 	enumerated by statute.
(Emphasis 	added.)
5 The 	individual 	employee 	in 	South 	San 	Francisco alleged
that 	the 	District 	unilaterally 	changed 	its 	past 	policy without
notice or an opportunity 	to negotiate provided 	to the 	union, 	in
violation of 3543.5(c). 	Here, 	Charging Parties challenge 	the
end 	result 	of 	negotiations. 	We 	find 	this 	factual 	distinction
irrelevant. 	The 	instant 	matter 	and 	South 	San 	Francisco 	each
involve 	individual 	employee 	attempts 	to 	interfere 	with 	the
bargaining 	process.
6 The 	purpose 	of 	EERA 	is 	to 	"promote 	the 	improvement 	of
. 	. 	. 	employer-employee relations" by recognizing 	"one employee
organization as 	the 	exclusive 	[bargaining] 	representative 	of
the 	employees 	in an appropriate unit. 	. . . " 	(Section 	3540;
emphasis 	added.) 	Under 	the Act, 	we 	find no corresponding
individual 	employee bargaining 	rights.
1
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5
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(29 USC sec. 	160(a); 	NLRB Rules and Regulations 	section
102.9.) 	Moreover, 	the NLRA authorizes 	the 	issuance of a
complaint 	with 	respect 	to 	a 	charge 	that 	" . . . 	any person has
engaged 	in or 	is 	engaging 	in any such 	unfair 	labor
practice, 	. . . " 	(Emphasis 	added.) 	(29 	USC 	sec. 	160(b).)
The 	NLRB has 	interpreted 	this 	provision 	as 	permitting 	an
individual 	employee 	to 	file 	a 	charge 	requiring an 	employer 	to
fulfill 	its 	statutory duty 	to bargain with 	the 	union. 	(Alfred
M. Lewis, 	supra.)
By contrast, 	EERA specifically 	limits 	the 	eligibility 	to
file 	a charge 	to 	"any employee, 	employee organization or
employer." 	(Sec. 	3543.5(a).) 	In Hanford Joint 	Union High
School 	District 	(1978) 	PERB Decision No. 	58, 	this Board 	found
that 	although 	the 	right 	to 	file 	an unfair practice 	charge 	is
extended 	to 	these 	entities, 	the 	specific 	grounds which 	can be
alleged 	are 	limited. 	In 	Hanford, 	the 	Board determined 	that 	a
nonexclusive 	employee 	organization 	is 	precluded 	from 	filing 	a
section 	3543.5(c) 	charge because 	to do 	so would be 	inconsistent
with 	the 	principle 	of 	exclusivity set 	forth 	in 	section 	3540.
In pertinent part, 	the 	Board 	reasoned 	that:
. 	. 	. 	permitting the 	intercession of a minority
organization 	raises 	not 	only 	the 	possibility 	of 	. . .
mischief 	. 	. 	. but could very well 	interfere with the right
of 	the exclusive 	representative 	to determine, 	in its own
best 	judgment, 	those matters on which 	it decides 	to
negotiate. 	(Hanford, 	supra, 	at p. 	8.)
We 	find 	this 	reasoning equally applicable 	to 	such 	claims 	filed
by 	individual 	employees 	as 	well 	as 	nonexclusive 	employee
organizations. 	In the 	instant matter, 	Charging Parties 	are
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attempting 	to 	require 	an 	annulment 	of 	the 	negotiated 	salary
schedule. 	However 	meritorious 	the 	allegations 	of 	dissatisfied
individual 	employees may be concerning wages, 	hours, 	or other
terms 	and 	conditions 	of 	employment, 	such 	complaints 	are 	simply
not 	cognizable 	as 	unfair 	practice 	charges 	under 	section
3543.5(c). 	This 	is 	true whether 	the charge alleges either an
unlawful 	unilateral 	change or 	a 	failure 	or 	refusal 	of 	the
employer 	to bargain 	in good 	faith.
We 	emphasize 	that 	nothing 	in 	our 	decision 	today 	shall 	be
construed 	to 	limit 	the 	ability of 	employees 	to pursue 	unfair
practice 	charges 	which assert 	individual 	rights 	under 	the Act.
We 	further 	note 	that 	the 	Charging 	Parties 	have 	available
the 	alternative 	of 	seeking a 	remedy 	to 	the 	alleged violation of
Education Code 	section 45028 	through 	the 	courts.
C. 	Timelines
Finally, 	the 	District 	argues 	that 	the 	instant 	charges 	are
barred by 	the 	six-months 	statute 	of 	limitations 	contained 	in
Government 	Code 	section 	3541.5(a) 	because 	the 	salary 	schedule
giving 	rise 	to 	the 	Charging 	Parties' 	concern was 	legally
contracted 	in 	1984 	and 	the 	charge 	was 	not 	filed 	until May
1986. 	The 	District 	argues 	that 	any actions 	taken by 	the
District 	via 	the 	November 	1985 	agreement 	were 	only 	to 	remedy
the 	situation created 	in 	1984.
The 	regional 	attorney 	correctly points 	out 	that 	the 	charges
complain 	only of 	the 	November 	1985 	agreement, 	ratified by 	the
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parties 	on November 	26, 	1985. 	The 	filing of 	the 	charges on May
23, 	1986 	falls 	clearly within 	the 	six-months 	statutory period.
The 	District's 	contention on 	this 	point 	is 	without merit.
ORDER
Based on 	the 	foregoing, 	the charges 	in Case 	Numbers
LA-CE-2389 	and 	LA-CE-2390 	are hereby 	DISMISSED.
Chairperson 	Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
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